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Criminal - Sentencing - Dangerous Offender (5). R. v. McManus
In R. v. McManus (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal dangerous offender appeal:Dangerous Offender Designation
[8] To determine whether an offender is a dangerous offender under s. 753(1) of the Criminal Code, the Crown must demonstrate, beyond a reasonable doubt, “a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 46. In Boutilier, the Supreme Court of Canada defined “intractable” conduct as “behaviour that the offender is unable to surmount”: at para. 27.
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[11] The dangerous offender criteria are laid out in s. 753(1) of the Criminal Code. The relevant portion of s. 753(1) provides:753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour ... [12] The sentencing judge then determined that a dangerous offender designation was justified under either s. 753(1)(a)(i) or s. 753(1)(a)(ii). Although the sentencing judge only used the term “intractability” once, he was alive to the principles articulated in Boutilier. He made several findings to buttress his conclusion that the appellant was intractable with a high likelihood of harmful recidivism. Specifically, the sentencing judge pointed to the appellant’s inability to control his anger or impulsivity, his history of re-offending, his anti-social personality disorder, his poly-substance abuse disorder, and his substantial indifference to the consequences of his behaviour. The sentencing judge found that, as laid down in Boutilier, that the appellant demonstrated intractability.
[13] The sentencing judge imposed an indeterminate sentence because he was not satisfied that there was a reasonable expectation that a lesser measure would adequately protect the public under s. 753(4.1). In support of this conclusion, the sentencing judge recounted the appellant’s refusal to participate in treatment programs and his consistent pattern of reoffending. In considering and rejecting the prospect of a lesser determinate sentence, the sentencing judge stated:I have no confidence due to his pattern of criminality, his history of violence that his risk for future violence and committing a serious personal injury offence will be reduced to an acceptable level either confined to an institution or on release into the community… There is no reasonable prospect of him managing his impulsive violent behaviour within a determined period of time. [14] Consequently, the sentencing judge found that a determinate sentence would not mitigate the appellant’s risk to the public.
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[17] We would not interfere with the sentencing judge’s assessment of the evidentiary record or his reasons, and dismiss the appeal. . R. v. Beaudin
In R. v. Beaudin (Ont CA, 2024) the Ontario Court of Appeal considered an appeal from an indeterminate dangerous offender sentence:[4] While the sentencing principles, such as the fundamental principle of proportionality, must be taken into account at dangerous offender proceedings, these types of hearings are not to be confused with conventional sentencing proceedings: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 52-53. The paramount consideration is the protection of the public, which requires a “thorough inquiry” into the prospect of controlling the offender in the community: Boutilier, at para. 68, citing R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 50; Johnson, at para. 19.
[5] At a s. 753.01(5) hearing, much like a hearing under s. 753(4.1), the judge must consider less coercive sentencing options before imposing an indeterminate sentence: Boutilier, at para. 69. . R. v. A.M.
In R. v. A.M. (Ont CA, 2024) the Ontario Court of Appeal dismisses a dangerous offender sentencing appeal:THE LEGAL TEST
[7] Part XXIV of the Criminal Code establishes a scheme for the designation of certain offenders as “dangerous offenders”.
[8] Section 753(1) sets out the different statutory requirements to be met to designate an offender as a dangerous offender. Under s. 753(1), there are four different routes to a dangerous offender finding, each with its own criteria: R. v. Francis, 2023 ONCA 760, at para. 59.
[9] Section 753(1)(a)(i) provides that an offender can be found to be a dangerous offender if the offender has engaged in a pattern of repetitive behaviour. More specifically, s. 753(1)(a)(i) provides that the court must be satisfied:(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour. [Emphasis added.] [10] Designation as a dangerous offender under s. 753(1)(a)(iii) focuses on the brutality of the behaviour associated with the index offence. Section 753(1)(a)(iii) provides that an offender can be found to be a dangerous offender if the court is satisfied:(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. [Emphasis added.] [11] Section 753(1)(b) considers whether an offender is able to control their sexual impulses. To be designated a dangerous offender under s. 753(1)(b), a court must be satisfied:that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [Emphasis added.][1] [12] Although the different routes to designation as a dangerous offender have different criteria, they each share four common elements: (i) the index offence is a serious personal injury offence, (ii) there is a broader pattern of violence of which the index offence forms a part, (iii) the behaviour is intractable, and (iv) there is a high likelihood of harmful recidivism: see R. v. Hanson, 2024 ONCA 369, at para. 84; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R 309, at p. 338; see also R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 26, 33.
[13] Once an individual has been designated a dangerous offender, the sentencing judge should consider whether a determinate sentence or a determinate sentence followed by a LTSO would protect the public.
[14] After ruling out these less restrictive alternatives, the sentencing judge may impose an indeterminate sentence. An indeterminate sentence must be the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level: Boutilier, at para. 65, citing R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. Otherwise, the sentence would “overshoot the public protection purpose of the dangerous offender regime”: Boutilier, at para. 64.
[15] An indeterminate sentence will be imposed unless there is a “reasonable expectation that a lesser measure” will adequately protect the public in the future from the offender committing another serious personal injury offence: Criminal Code, s. 753(4.1).
[16] As noted by the sentencing judge, the burden is on the Crown to establish beyond a reasonable doubt that the criteria for designation as a dangerous offender have been met and that an indeterminate sentence should be imposed: Boutilier, at paras. 26-27, 35-37.
[17] The purpose of the scheme is public protection: Boutilier, at para. 56; R. v. Steele, 2014 SCC 61, [2014] 3 SCR 138, at para. 27; and Johnson, at para. 29. Consistent with this purpose, the court seeks to identify offenders who are dangerous to prevent them from endangering the public in the future: see R. v. Knife, 2015 SKCA 82, 460 Sask. R. 287, at paras. 53-54, leave to appeal refused, [2015] S.C.C.A. No. 382.
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